Killing an Alsatian would be cruel, but to kill a Mockingbird?
Now that would be sin.
An essay by Goh Leyu Lois
The cries of the women rocked the uneasy silence “Let us go! Let us go!” A final wave of cruelty and injustice would eventually befall them and seal their fate. They would never be heard from again, too weak and few to fight against this force; the force of pure tyranny.
Oppression.
Tom Robinson, an African American who was unfairly tried by the town of white people because of the color of his skin in “To kill a mockingbird” is, as the title suggests, a mockingbird that had been slaughtered. A mockingbird causes no harm except to sing in all innocent gifts. To kill it, would be a sin.
Oppression.
The definition of oppression is apparent and obvious to many but to contextualize it with regards to company law is sometimes difficult since there is no absolute definition to oppression. This much however, I have gleaned from the textbooks which house thoughts from legal systems around the world.
Oppression is to disregard a member’s interests and this goes beyond the “failure to take into account the member’s interest”, there must be an “awareness” of the interest and a blatant nonchalance going about it.
Now then, is oppression necessarily a force targeting the minority as the word has rightly suggested in the past? After having read an article by Mr. Ian Ramsay “Can a majority shareholder bring an action?” I begin to realize that many people mix up dominance and control with majority shareholders when really, to put it simply;
Size doesn’t matter.
Therefore, the first point we ought to ascertain is the fact that dominance does not have to be synonymous with the majority of the votes. This means that given a workplace setting, you don’t necessarily need to control the most votes to be categorized as “majority”; you only need be an important or pivotal role that could possibly influence the other votes. Hence, this bid of garnering votes would make you, the dominating power.
This is why I ask you again, “oppression against the minority”, is this statement redundant?
In “Kumagai Gumi co ltd v Zenecon- Kumagai Sdn Bhd”, Anuar J said that
“Relief under s181 (the Malaysian equivalent of s216) is available to majority shareholders who are not in control of the management of the company and who, for any given reason, are unable to control the board”
He later reiterated it again in the obiter dictum.
This is the first principle where s216(1)(a) and s216(1)(b) can be applied to and it just goes to show that no matter the reason, oppression is indeed for anyone and everyone who can prove that they have been unfairly treated in a company.
We must be very careful about having been “unfairly treated” though, since there is a thin line between 1) oppression and 2) disagreements about policy and mismanagement. The law must not overlook the fact that our world is populated with petty and disgruntled workers who by pure nature, might become opportunists should an opportunity arise. This meaning, a member of a board cannot have the rest of the board members up for oppression without explicit proof and sure evidence that they passed a certain judgment out of own greed and not for the interests of the company.
A pertinent point in the Walter Woon textbook states that “the fact a member is consistently outvoted does not mean that he is oppressed or that his interests are being disregarded. It should also be remembered that the majority also has rights”
It really just follows the concept on whether you would kill a person because he was an African American or kill a person who happened to be an African American. Likewise, if you would outvote a member just because he seemed like a minority or to outvote someone’s decision and that someone happened to be a minority shareholder. The difference is stark.
In line with my argument, I refer to both Re Kong Thai sawmills (Miri) Sdn Bhd and Paloh Medical Centre Sdn Bhd where the learned judges stated that
“For the case to be brought within s 181(1) (a) at all, the complaint must identify and prove ‘oppression’ or ‘disregard’. The mere fact that one or more of those managing the company possess a majority of the voting power and, in reliance upon that power, make policy or executive decisions, with which the complainant does not agree, is not enough. Those who take interests in companies limited by shares have to accept majority rule. It is only when majority rule passes over into rule oppressive of the minority, or in disregard of their interests, that the section can be invoked”
This really just drives in the point that relief will not be given out to the members who feel victimized because of a division in decisions. Therefore, “mismanagement of the company does not necessarily constitute oppression or disregard of a member’s interests!”
A burning question within me however was the seemingly easy question of what a member was and if there was some sort or capacity which the member had to fill? Third principle on which s216 is to be applied is that oppression must affect the petitioning member qua member. Checking the dictionary, I came to realize that qua really just meant “in the capacity of”. This being said, we should use this as a gauge in cases. We should always remember to keep coming back to this central question and ask ourselves if the alleged acts of oppression were indeed carried out during the course of the business or outside the business, thus rendering the member, not a member.
In Re Chi Liung & Son Ltd,
It had been said that the petitioner as a beneficiary to a family trust would not be entitled to relief on the grounds of oppression. However, after reviewing the case, the court held that there was oppression present against him in the capacity of a member and the director of a company.
Indeed, I must clarify the fact that relief under this principle is really an all or nothing gain. If for instance, the courts rule that you are not entitled to any relief because you are in the capacity as a beneficiary under the family trust then you get completely nothing. If however you are the director of the company who has been oppressed, and the courts are convinced that you have been oppressed as a member, both grounds of complaint in the capacity of a member and director will be allowed.
All this unfortunately will amount to nothing if there is no continuing state of affairs. This basically means that when a petition based on an act of oppression is presented to the courts, it must be shown that the oppression hasn’t ceased at the time the action is brought. There is an exception however when the oppression is past, if the member can prove that that particular act of oppression was long lasting and immensely harsh.
I refer again to Re Kong Thai sawmills,
“In a number of United Kingdom decisions, it has been held that for s 210 to apply, the complainant must show oppression continuing up to the date of proceedings (e.g. Re Jermyn Street Turkish Bath Ltd [1971] 1 WLR 1042); where there has been oppression in the past, the section does not bite.”
Therefore, if a certain act of oppression stands by itself, has past and does not leave a strain on the petitioner, he will not be able to claim relief on the grounds of anything. He must always be able to show the continuing act or effects of oppression, otherwise, there is no provision for such a misplaced request.
To further ensure that relief will be guaranteed, relief ought to be sought with haste and almost immediately. This will indirectly send an added message to the courts that the petitioner puts priority into this matter and that it has greatly affected him. Any such delay in seeking help would be inevitably seen as a reduction in severity of the situation or worse still, an outright acceptance to the matter altogether.
In conclusion, oppression in the company law context is not so much of misplaced angst or commercial apartheid; it is really just about protecting the various parties’ interest in a company. Company laws are put in place so that no tyranny will ensue or a company will not undergo a totalitarian state in which it’ll be declared a commercial North Korea.
I would now like to leave you with an explanation of my title. Alsatians are noted to be fierce but useful dogs to the police force and killing them could be likened to competent workers whose decisions are overruled. Yet mockingbirds, in all their defenseless glory, encapsulate the pure essence of oppression. It is the fact that no harm ought to come to the people since the person didn’t have much to begin with.
Killing an Alsatian would be cruel, but to kill a Mockingbird?
Now that would be sin.
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5 comments:
LOIS! finally you unlocked it.
Anyway, wouldn't being dominant = having majority of the votes, because if you're the boss, then all the little suckers would jump on the bandwagon and vote according with you right?
on the other hand, if you were a loser of a boss, you wouldn't be dominant anymore, hence losing votes and falling into the minority category?
and i agree that its very hard to justify relief and compensation for such stuff. but tort law is attractive because of the challenges faced in proving and sueing for these kind of intangible damages. and the money when you succeed... $$$$$$$$$$
haha, somewhat. its just that sometimes you may be in top management but not the top most so you don't have majority shares. BUT you're hell influential so you can get all the other shitty small shares to join up with you and became a hell big share. thus making you dominant(without owning the majority shares yourself.)
can you just specialize in tort then look for some bogus pharmaceutical company to sue for big bucks? we split even.
pssstt tell you a secret. a mega big company has melamime in the stuff they produce. interested? :D
AAAAAAAHHHHHH!!!!!!!
MY HEAD!!!!!!
i've just wasted your time, haven't i?
back to reading your lengthy post.
:)
omg i can't believe the number of familiar faces i've seen in your blog. at the very least, deidre and andrew cho. i don't know them know them, but wells, primary school mates uh. hahaha.
the blog's imiee.blogspot.com btw. :)
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